The Delhi High Court has observed that where a cross examination has been conducted extensively, it would be against the mandate of law to re-summon the witness especially in a case of sexual offence.
Observing that the right to fair trial is a constitutional goal and a fundamental right of every individual, Justice Swarana Kanta Sharma said that where evidence sought to be brought on record is essential to issue involved in the matter, the power to summon material witness or examine person in attendance under Section 311 of Code of Criminal Procedure must be invoked.
The Court was dealing with a plea filed by a man accused in a rape case against a Trial Court order dismissing his application under Section 311 of the Code for recalling of two prosecution witnesses including the victim. The FIR was registered under Sections 376 and 506 of IPC and Section 6 POCSO Act.
The sole ground on which the application for re-summoning the victim for her cross-examination was filed was that the accused's previous counsel did not cross-examine her on material points. The other witness - the principal of victim's school - was not cross-examined as the counsel for accused was unavailable, the court was told.
It was the petitioner's case that his plea for re- examination of two prosecution witnesses was declined on totally erroneous grounds. It was argued that as there was a dispute about the age of the victim and the impugned order must be set aside.
The Court observed that though change of counsel in a case cannot always be ground for recalling and re-examination of witness specially in cases of sexual offences, however, facts and circumstances of each case have to be appreciated before deciding an application under Section 311 of the Code.
"Fair trial demands that opportunity to defend the accused be afforded. In case, the cross-examination would have been conducted extensively, it would have been against mandate of law to re-summon the witness especially in a case of sexual offence. However, in the present case, only questions regarding the family members, etc. of the victim were asked in the cross-examination and no question was put regarding the allegation leveled against the accused," the Court said.
Noting that the application was moved on the first available opportunity by the accused who was in judicial custody, the Court said that it was a fit case for allowing the same.
The Court thus directed that the two prosecution witnesses to be cross examined in one single opportunity and preferably on same day, specifying that no adjournment shall be sought by the accused's counsel.
"Cost of Rs. 5,000/- is imposed on the accused/applicant which will be deposited with Delhi High Court Advocates' Welfare Fund within a period of two weeks from the date of receipt of this judgment," the Court said.
The plea was accordingly disposed of.
Title: VINOD RAWAT v. STATE
Citation: 2022 LiveLaw (Del) 895